Retained EU Law (Revocation and Reform) Bill

Baroness Lawlor Excerpts

Report stage
Monday 15th May 2023 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I put my name to this amendment from the noble and learned Lord, Lord Hope. I will address the question—or possibly accusation—from the noble Lord, Lord Pearson, head-on: I voted for Brexit, because I support policies designed to give the UK more freedom to operate in the world without the inhibitions that came with our membership of the European Union.

One of the reasons for my voting for Brexit was that I wanted to make some attempt to reduce what I saw as the marginalisation of the UK Parliament—that it was, under the system then prevailing, more or less reduced to a cipher, as my noble friend Lord Hamilton pointed out. My noble friend the Minister has made some significant changes. I, like other Members of the House, thank him for that. A lot has happened in the last few days and it might be that I have not understood fully what he is proposing and its implications, but as I read it at present it does not seem significantly to enhance Parliament’s power.

I have one more reason why the House needs to be extremely careful about this matter. We are entering a brave new world in which, for better or for worse, we have greater control over our legislative process. This Bill could create a dangerous precedent as to how, in this brave new world, the Executive feel able to treat the legislature—the two Houses of Parliament.

For the rest of my remarks, I will briefly probe a little deeper the thinking behind the Government’s approach and the level of parliamentary scrutiny of and involvement in the Bill. One of my last tasks before I handed over the chairmanship of the Secondary Legislation Scrutiny Committee to my noble friend Lord Hunt of Wirral at the end of January was to sign off the committee’s report on this Bill, which the House may recall was entitled Losing Control?: The Implications for Parliament of the Retained EU Law (Revocation and Reform) Bill. The Government are required to provide a response to the recommendations made in reports from your Lordships’ House, and they have done so. I am extremely grateful to my noble friend and his officials for the extensive and detailed 10-page reply. However, it is dated 10 May—last Wednesday—so again, if I have not been able to absorb the full implications of what he is saying, I stand ready to be corrected when he comes to reply.

There are two specific points that I would like to draw to the House’s attention. The first is in paragraph 31 of our report and touches on the point made by the noble Baroness, Lady Andrews. We lay out a reason as to why, even if

“a definitive list of the relevant law were eventually compiled in time”,

the House would be insufficiently informed unless something was said about the “individual piece” of legislation; to produce a list is not the same.

The Government’s response was:

“The Schedule approach means that a definitive list of REUL to be sunset has, in fact, been compiled. This Schedule is subject to parliamentary debate and approval”.


My concern is that the House approving the schedule—the long list of 600 or so SIs—is affording only the most tangential level of parliamentary involvement and approval. Do I assume that in giving my approval to the schedule I am automatically endorsing every one of the constituent SIs, or do the Government intend to bring forward an explanatory note on the reason for including each individual regulation on the schedule, many of which I agree are probably quite trivial, to be considered by both Houses? Without this, Parliament has no real understanding of what it is approving, and it is this uncertainty that makes the amendment moved by the noble and learned Lord, Lord Hope, so important.

My second and final point relates to the recommendation made in paragraph 33. Our report said:

“It is generally acknowledged that the scrutiny of secondary legislation falls very far short of the scrutiny afforded primary legislation. Downgrading the status of direct principal retained EU legislation so that it can be amended by ‘ordinary powers to amend secondary legislation’ … means therefore a corresponding downgrading of effective parliamentary scrutiny. Suggesting that this will have the advantage of saving parliamentary time does not make the Government’s justification for this change any more persuasive. It is a matter for Parliament to decide how it should use its time”.


The Government’s response is:

“The Government disagrees that the scrutiny of secondary legislation falls short of the scrutiny of primary legislation. The scrutiny procedures for secondary legislation are long standing and are endorsed by Parliament during the passage of legislation”.


I find this continuing government assertion that the scrutiny of secondary legislation is equivalent to that of primary legislation astonishing—jaw-dropping, to be frank. My noble friend’s letter says that the scrutiny procedures for secondary legislation are long-standing, and he is right, but those long-standing procedures were designed for an earlier age when Governments used secondary legislation for what it says on the tin: to deal with issues of secondary importance and avoid gumming up the legislative machine. But successive Governments have used secondary legislation to pass into law—law that applies to every one of us—decisions too important to be left to secondary procedures with their “take it or leave it” unamendable approach. As I have said before, if the Government want to take a little they have to give a little, and so far the Government appear unable or unwilling to do this.

My concluding remarks are these: Parliament will stop this continuing shift in the balance of power towards the Executive and away from the legislature only by constantly explaining how fundamental to the health of our system of government it is, no matter how difficult, embarrassing or controversial it may be to do so. That is why it is essential that the House supports the amendment moved by the noble and learned Lord, Lord Hope.

[Baroness Lawlor (Con)]

My Lords, I thank my noble friend the Minister for explaining so fully his amendment to the Bill. I am slightly saddened on two counts. First, I wish the list he provided in the schedule was a little more ambitious and extensive in the number of regulations and rules included. Secondly, I am saddened by the response of some Members of your Lordships’ House.

I particularly oppose Amendment 2. The idea that there is an initial committee is hardly more than camouflage, because the committee is charged with putting any but the most negligible changes to both Houses.

The subsequent requirement in the amendment that a majority of both Houses has to approve the removal gives, in effect, the power of veto to an unelected Chamber, in a way that goes contrary to the constitutional arrangements of a democratic country whose voters explicitly chose withdrawal from the EU and its laws, at the referendum and again in 2019. They voted overwhelmingly for a government pledge to carry out that mandate. The Executive have a mandate—a direct mandate—from the electorate to end EU law. That mandate must be respected, and must be respected by this House.

A much more extensive arrangement was put to the House of Commons, which passed at Second Reading by over 60 votes. I am very concerned that this House will, yet again, obstruct the will of the people, expressed in 2016—

[Noble Lords]

Oh!

[Baroness Lawlor (Con)]

I am sorry, my Lords, but it was clearly expressed, and it was expressed again in 2019. A mandate was given to the Executive to remove EU laws; it was not given to this Chamber to hold it up.

[Lord Hendy (Lab)]

My Lords, I doubt very much whether the will of the people was to remove the rights of working people. I doubt very much whether those who voted for Brexit voted to remove the rights and entitlements that they had inherited from EU law.

I too support the amendment in the name of the noble and learned Lord, Lord Hope. Last Wednesday, 10 May, to which the noble Lord, Lord Hodgson of Astley Abbotts, referred a moment ago, was a busy day for the Government. On that day, in the other place, the Secretary of State for Business and Trade made a Written Statement about this Bill, pointing out that amendments would be tabled to it. At the end of the Statement, she said:

“As part of this drive for deregulation, today I can announce that we will make improvements to employment law which could help save businesses around £1 billion a year, while safeguarding the rights of workers”.—[Official Report, Commons, 10/5/23; col. 16WS.]


And she gave some indication of what those changes might be.

On that same day, the Department for Business and Trade also published a booklet called Smarter Regulation to Grow the Economy. From the last couple of pages of that we learn what is in the Government’s mind: first, the requirement under the working time regulations to keep records of hours worked is to be removed. How businesses and their workers will be able to ensure compliance with the remainder of the regulations was not explained. Secondly, eight days of UK holiday are to be added to the 20 days of EU holiday for workers; but, it appears, this may result in economic loss, as the days allowed by the EU are paid on a different, higher basis than the UK days. Thirdly, rolled up-holiday pay—a technicality of employment law—is to be permitted, but the effect is to remove what was introduced as a protection for workers. Fourthly, the obligation to consult over redundancies is to be removed for small businesses.

Those changes are not very great, although they may be significant for some. In the vast number of amendments to this Bill that have been tabled—in particular, the 600 pieces of EU-derived legislation identified by the Government for removal or partial removal—I have looked at where those weakened employment rights are to be found. They are not there. The reason they are not there is that they will be introduced by statutory instrument after the Bill has become law.

We in Parliament need the chance to scrutinise what will otherwise be a constant stream of statutory instruments removing and weakening workers’ employment rights and health and safety at work rights. That is why I support the important amendment from the noble and learned Lord, Lord Hope.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

My Lords, I apologise for intervening again, but the rules found in the Companion are very clear about speaking once on Report.

[Baroness Lawlor (Con)]

My Lords, Amendment 15 is modelled on the amendment proposed earlier to Clause 1. As noble Lords who have put the amendment have said, this is to enable Parliament, not the Executive, to have the final decision. It may seem strange that I oppose that, but I do oppose it, because it makes the assumption that, in general, EU rights, powers and liabilities should remain after our withdrawal, unless a specific decision is taken in each case to remove them. On the contrary, the decision at the referendum, confirmed in 2019, was to leave the EU and leave behind its rights, powers and liabilities. Moreover, the House of Commons has voted in favour of Clauses 4(1) and 4(2).

Rather than a defence of parliamentary power, about which noble Lords have spoken very eloquently, this will or may appear a rear-guard action to retain binding links with the EU system of law, despite the decision. To repeat again what I said on the amendment to Clause 1, a direct mandate was given to the Executive to end that legal system, and it is not for this House to obstruct that mandate any longer.

[Lord Hunt of Wirral (Con)]

My Lords, I shall say a brief word. Having taken over from my noble friend Lord Hodgson of Astley Abbotts of chair of the Secondary Legislation Scrutiny Committee, I would like to support his words and the words of my colleague, the noble Baroness, Lady Randerson, with regard to Amendments 73 and 74.

As we have heard, under the European Union (Withdrawal) Act 2018 the committee was charged with an additional function—the scrutiny of what are called proposed negative instruments laid under the new sifting mechanism. The committee had 10 days to report on those proposed instruments and, to the immense credit of the committee and of the talent of the staff concerned, it rose to that considerable challenge of meeting a demanding deadline under the leadership of my noble friend. But this was not an easy matter. In its report on the Bill, the committee warned that the task of sifting would be even more challenging under this Bill because of the potential significance and complexity of the instruments to be sifted.

During the debate in Committee, in which I participated in support of my noble friend, the Minister gave us some hope that he understood the persuasiveness of the case for extending the scrutiny period. Sadly, that was not to be, and the Government in their response to the committee’s report on the Bill said that they did not accept the need for the period to be extended. This is very disappointing indeed. As I said in Committee, the committee would not expect to use the full 15 days for every proposed negative instrument—far from it. What is being asked for is an extension of the deadline in recognition of the fact that the Bill has the potential for generating more complex and far-reaching policy changes through instruments subject to the sifting mechanism than the 2018 Act has.

I warned my noble friend the Minister that when he got back to the department, after his warm words in support of my noble friend and other noble Lords who participated, people would tell him that it was impossible, because it would set a terrible precedent—and I think that that is probably what happened. I would ask him just to think again, because I do not think that it sets a precedent at all; it is a unique occasion. If the Government are to demonstrate their support for effective parliamentary scrutiny—and, in particular, effective use of the sifting mechanism—I would urge him to think again and accept these amendments.